Law, politics, pop culture, sports, and a touch of Oregon.

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February 28, 2010

"24" may have given us not one but two African-American presidents over the first six seasons (David Palmer, seasons 2-3; Wayne Palmer, season 6), but when it comes to African-American women, has there been a major guest character who's not devious and evil? I mean, seriously, there was Sherry Palmer (season 1-3), Marianne Taylor (season 4), and now Kristin Smith (season 8).

February 26, 2010

I know "The Princess Bride" has a reputation for being a "chick flick," but I think it's one of the best movies ever made (and a terrific novel, too). I like it so much that I used one of its classic lines as the central image for my short essay on Ashcroft v. Iqbal, which is part of a paper symposium in the Lewis & Clark Law Review.

It's titled "I Do Not Think [Implausible] Means What You Think It Means: Ashcroft v. Iqbal and Judicial Vouching"; the abstract reads:

The Supreme Court's use of a "plausibility" standard to order the dismissal of a plaintiff's civil rights action in Ashcroft v. Iqbal has been criticized on a variety of grounds. In this Article, I argue that even if Rule 12(b)(6) of the Federal Rules of Civil Procedure does and should contain such a plausibility standard, the application of that standard to Iqbal's allegations is utterly unpersuasive. The Court could have used qualified immunity to grant relief to the government-official defendants instead of declaring implausible Iqbal's allegation that he was subjected to harsh detention conditions due to his being Pakistani and Muslim. There are, in the pages of the federal reporters, decisions in which trial and appellate courts have sustained civil rights complaints against motions to dismiss. Those complaints, like Iqbal's, alleged conspiracies to target persons based on race or other such characteristics. Therefore, the Court's decision in Iqbal can, in essence, only be understood as vouching improperly that these defendants would not have acted in the ways alleged.

I've been watching a good bit of the Winter Olympics 2010, and I haven't been alone in the house. My older son already likes hockey, but he became a fan of curling(!) from watching it.

Compared to the Summer Olympics, the Winter games seem more thematically coherent -- everything involves ice or snow. Also, I can't remember the Summer games having any events that come across as incredibly insane as half-pipe snowboarding or aerial skiing; I can't even imagine what training for those events is like!

Anyway, I also like short track skating, the domain of "Dancing With the Stars" champ Apolo Anton Ohno. This is the race where skaters go around a tight oval, usually bunched up together, until someone makes a move near the end to cut ahead of others. There's a lot of jostling and a fair number of slip/falls. It's a sport where South Korea is the dominant powerhouse, and in one of the early events, the men's 1500m race, it looked like South Korean skaters were going to sweep the medals. Seriously, they were finishing the last turn and just had to skate straight to the finish line to claim gold, silver, and bronze, leaving Ohno and his U.S. teammate J.R. Celski in 4th and 5th. However, the guy who was going to take 3d decided to try to cut in front of his teammate and clipped him, and both South Koreans crashed into the side wall. As a result, Ohno took the silver and Celski took the bronze.

Wow! I wonder what the South Korean newspapers were saying about that guy? (I've tried looking but my Google-fu isn't up to the job.) NBC did show a clip a few days later where he offered his hand to his teammate (the one he took out), but the teammate refused to shake hands.

If that's not bad enough for South Korea, it got worse. In the women's short track relay, the final four teams in the medal round were South Korea, China, Canada, and the U.S. And that was the order they were headed into finishing. South Korea and China were racing for the gold, Canada was solidly ensconced in third place, and the U.S. was about half a track behind Canada. Near the end of the race, the South Korean skater cut in front of the Chinese skater and seemed to rocket off, which was the result of some pushing off. South Korea finished first, then China, then Canada, and finally the U.S.

As the South Korean skaters took victory laps with their national flag, no final results were posted. Instead, the referee -- who 8 years ago had disqualified a South Korean male skater in Nagano, Japan, during the 2002 Winter Olympics, giving the gold to second-place finisher Ohno -- DQ'd the South Korean team.

China got the gold, Canada the silver, and the U.S. the bronze.

Wha????

I guess it's the rules, but there's no way we deserved the bronze medal. I mean, even without the illegal move, South Korea would have beaten the U.S. by something like 10 seconds, and Canada by 5 seconds. I suppose there's no better system without getting the referee embroiled into determining what would have happened without the illegal contact (though in the earlier rounds, refs have the discretion to advance skaters who get taken out by illegal contact if they were in "qualifying position"), but it just doesn't seem right that our team, which was almost lapped by the top teams, would back into a bronze medal. To be clear, I don't mean to take anything away from our women, who were better than the short track relay teams of all countries, save three. And I like seeing the U.S. atop the medal standings. I just feel funny about this one.

February 24, 2010

The International Law Society chapter here at Lewis & Clark has been sponsoring the Law School Olympiks (sic) as a fundraiser, with events like a table tennis tournament that concluded yesterday. Today was the day for Wii boxing, and the enterprising students went around and got a number of faculty to agree to fight each other (in addition to student-on-student matches).

I was game, not least of which because I was able to avoid wearing a suit today even though it's a teaching day (and I usually wear a suit when I teach). As I explained to my Crim Pro students, who immediately noticed how I was dressed, "James Bond may be able to fight while wearing a suit, but I don't think I can."

My worthy opponent was my colleague George Foster -- like me, a newcomer to Lewis & Clark, which is why we were matched up. It was a three round match, and in the first round, we traded knockdowns, but no knockouts. In the second round, though, I scored the decisive knockout victory. Yea me!

February 23, 2010

In a pithy analysis of the results of the CPAC straw poll of preferred Republican Presidential candidates in 2012, Steve Bainbridge has a funny line, calling Sarah Palin the "Paris Hilton of politics."

This got me wondering -- 5 or 10 years from now, looking back to this time, who will history conclude did more damage to the Republican Party, George W. Bush and his profligate spending that destroyed the party brand of fiscal restraint, or Sarah Palin and her anti-intellectual/anti-knowledge vacuity?

Should public schoolteachers be allowed to wear religious garbs such as head scarves and turbans while teaching? Right now, Oregon law says no, but the Legislature is considering House Bill 3686, which would repeal that prohibition.

Those who would benefit from the passage of this bill include Muslim women and Orthodox Jewish men, among others. Letting such persons satisfy the dictates of their religions is consistent with the spirit of the First Amendment, which states in part that the government "shall make no law . . . prohibiting the free exercise" of religion.

Yet, the American Civil Liberties Union of Oregon is on record as opposing House Bill 3686, which has passed the House and is pending in the Senate. According to the ACLU, "[p]ublic schools have a special obligation to ensure an atmosphere that is welcoming to all students and their families regardless of their religious beliefs." Few reasonable people would disagree with that statement. The more challenging task is to demonstrate how a rule that lets female Muslim teachers wear headscarves while teaching would create an unwelcoming atmosphere for non-Muslim students and their families.

The ACLU has thus argued that "any change or repeal of the Oregon religious dress law may have unintended consequences that could result in an inappropriate expansion of religious activity in our public schools." I'm not exactly sure what the ACLU means by "inappropriate expansion of religious activity"; if the point is that public school teachers should not be allowed to proselytize to their students, then the ACLU would be on strong ground, for that is the point of the First Amendment's Establishment Clause.

But House Bill 3686 does not permit teachers to do anything of the sort. It merely lets them wear religious garb when teaching. So the ACLU's opposition appears rooted in the speculative notion that if schoolchildren see their teachers wearing headscarves or turbans, they will somehow perceive that the teachers are proselytizing to them, even if the teachers say nothing about religion in class.

I suppose that's possible, although it would be instructive to look at the 47 other states that do not have this ban on the wearing of religious garb by teachers to see if those states have experienced this kind of indirect proselytization. The point is that whether this hypothesized harm will actually befall children is speculative and diffuse; even if it did happen, parents would likely mobilize and protest. On the other hand, the harm of the current ban is direct and individual, and it is concentrated on a small number of persons who are forbidden from complying with their religions during their working hours.

What is especially strange about the ACLU's position is that traditionally, the ACLU has often defended the civil rights of the minority against the majority, the disfavored and powerless against society. Whatever the original reasons for the ban on religious garb for teachers, the law today impacts such minority religious adherents as Muslims (approximately 0.5% of Oregon's population).

One need not agree with all of the ACLU's cases or positions to admire its underlying principles – but in this instance, its position seems to contradict those underlying principles.

February 19, 2010

So Tiger Woods cavorted with lots of women while he was married, was caught, and took a leave of absence from golf, only to emerge yesterday with a public apology that was broadcast live on TV.

Why should I care? You could argue, with some plausibility, that he's a role model, a position that comes not because he's a superstar athlete, but because he willingly and voluntarily endorses a wide variety of products, some of which appeal to younger kids. His inherent credibility has been damaged, and therefore the general audience (as opposed to the sponsors) might have a claim on his apologies. I suppose, although maybe I'm just a bit cynical on this point to doubt that celebrities who endorse products are somehow role models.

In any event, Woods' extensive cheating on his wife doesn't seem to me to contradict directly anything that he's endorsing. It's not like he's on TV advocating that we all be faithful to our spouses or that we always tell the truth to our spouses.

In other words, I really do see his cheating on Elin Nordgren as between the two of them (and, I suppose, their kids). Because he's a celebrity and professional athlete, it's newsworthy, but I could see an argument for why it shouldn't be.

Contrast Woods' situation with those of former NY Governor Eliot Spitzer and former President Bill Clinton, both of whom also cheated on their spouses. Both Spitzer and Clinton also tried to argue that their (mis)behaviors were purely private matters.

It's tempting to say that the difference is one between professional athletes and politicians, but I don't think that captures it. Spitzer's replacement, David Patterson, immediately confessed to having cheated on his spouse (and vice versa) upon assuming office, but that too seemed to me to be a purely private matter.

Clinton's affairs were public matters because he chose to lie under oath when questioned about them. That he was the head of the Executive Branch, charged with prosecuting persons who lie to federal officials and who lie under oath, meant that he arguably was putting himself above the law. The same is true of Spitzer, whose conduct was not only criminal in violating laws against prostitution (using them, in his case), but also demonstrated a belief that he was above the law, since he had himself prosecuted prostitution rings when he was Attorney General.

February 15, 2010

I'm not sure how Oregon's court finances are doing, but they can't be much better than California's. And this L.A. Times story paints a pretty grim picture for the courts and juries, with so many people getting excused for financial hardship.

I've been called to jury duty twice before (once in the same jury pool as Sandra Bullock's sister), was voir dired both times, and was excused both times. I was kind of glad the first time, since I was at Munger Tolles at the time, and hence work would've just piled up while I sat on a jury; but the second time was while I was at the University of Iowa and had time to serve -- I would've loved the experience of seeing a jury operate. Well, and being on one.

Perhaps if I get called again, lawyers won't be so quick to dismiss me!